Citation Nr: 0025150
Decision Date: 09/21/00 Archive Date: 09/27/00
DOCKET NO. 97-32 888 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for a back condition.
2. Whether new and material evidence has been submitted
sufficient to reopen a claim for entitlement to service
connection for an ear condition.
3. Entitlement to an increased rating for residuals of a
fracture of the distal third right radius currently evaluated
as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
James A. Pritchett, Associate Counsel
INTRODUCTION
The veteran had active service from May 1952 to May 1954.
Service connection for an ear condition was denied in an
unappealed rating action in March 1972, which is now final.
This appeal arises from a May 1996 decision by the San Juan,
Puerto Rico Department of Veterans Affairs (VA) Regional
Office (RO) which found that new and material evidence had
not been submitted to reopen the veteran's claim of
entitlement to service connection for an ear condition. The
same rating decision denied service connection for a back
condition and a compensable evaluation for residuals of a
fracture of the distal third of the right radius.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The evidence does not show that the veteran has a current
back disability which could be related to service.
3. By rating action in March 1972, the RO denied the
appellant's claim of entitlement to service-connection for an
ear condition. He was notified of the decision by letter
dated in March 1972, but a timely appeal was not received.
4. The evidence submitted since the March 1972 rating
decision includes evidence which has not previously been
considered, and which is new and material to his claim. That
is, the evidence is relevant or probative of the issue at
hand, and by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim.
5. The claim of entitlement to service connection for an ear
condition is not plausible.
6. The veteran's residuals of a fracture of the distal third
of the right radius are manifested by X-ray evidence of
arthritis, slightly decreased range of motion and subjective
complaints of pain.
CONCLUSIONS OF LAW
1. The veteran has not submitted a well-grounded claim for
service connection for a back condition. 38 U.S.C.A.
§ 5107(a) (West 1991).
2. The March 1972 rating decision denying service connection
for an ear condition is final. 38 U.S.C.A. §§ 1110, 1131,
5107, 7105 (West 1991 & Supp. 2000); 38 C.F.R. 3.104(a)
(1999).
3. The evidence submitted since the RO denied service
connection for an ear condition in March 1972 is new and
material, and the claim is reopened. 38 U.S.C.A. §§ 1110,
1131, 5107, 5108 (West 1991 & Supp. 2000); 38 C.F.R. §
3.156(a) (1999).
4. The claim of entitlement to service connection for an ear
condition is not well grounded. 38 U.S.C.A. § 5107 (West
1991).
5. The criteria for a rating in excess of 10 percent for
residuals of a fracture of the distal third right radius have
not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38
C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59,
4.71a, Diagnostic Codes 5010-5003 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
Evidence before the RO at the time of the March 1972 rating
decision includes the veteran's service medical records which
indicate that in May 1952 the veteran suffered a fracture of
the distal third of his right radius. A cast was applied in
June 1952. The May 1954 separation examination report is
negative for complaints, symptoms or findings regarding the
right wrist fracture. The service medical records are
negative for complaints, symptoms or findings regarding a
back condition or injury. The service medical records
reflect that the veteran had no complaints of hearing loss.
In June 1952, he showed a scarred left drum. He had 15/15
hearing by spoken and whispered voice during his May 1954
separation examination.
A February 1972 VA rating examination report is negative for
complaints, symptoms or findings regarding a back condition.
The veteran claimed a hearing disability and told the
examiner that he was almost deaf. However, the examiner
stated that he had a most normal speech hearing, clean clear
ear canals, and normal tympanic membranes.
The veteran's right wrist functioned normally, easily
reaching full range of motion of pronation and supination,
with no signs of muscular atrophy, deformities or abnormal
calluses. No tenderness or pain was elicited on motion
testing.
The diagnoses included no apparent hearing loss for speech
frequency, no pathological findings of the ears and no
pathological findings of residuals of a right arm fracture.
The examiner noted that there were no other muscular or
skeletal complaints. No findings were made regarding a back
condition.
Service connection for an ear condition was denied by a March
1972 rating decision as not shown by the record, based on the
above evidence. The decision also established service
connection and a noncompensable evaluation for residuals of a
fracture of the distal third of the right radius.
The veteran was notified of the denial of service connection
for an ear condition by letter dated in March 1972. He did
not submit a timely appeal.
Evidence added to the record since the March 1972 rating
decision includes the report of a January 1994 audiological
examination from the Navares Speech and Hearing Center. The
report indicates bilateral hearing loss. The examiner stated
that the results were indicative of bilateral auditive loss
of a moderate level and of a sensory neural type. The report
is negative for a medical opinion linking the hearing loss to
the veteran's service.
Also added to the record since the March 1972 rating decision
was a May 1996 VA orthopedic examination report that states
that the veteran complained of pain in his right wrist. No
anatomical defects or muscle atrophy were noted on
examination and his muscle strength was normal. Dorsiflexion
was to 50 degrees and flexion was to 65 degrees without
crepitus. He could touch all fingertips to his thumb and to
the median transverse fold of his right hand. The diagnosis
was residuals of a right distal third radius fracture.
During a February 2000 VA orthopedic examination the veteran
complained of pain in his right (major) hand during household
activities such as cleaning, more in the morning and during
cold and rainy days. He stated that massages alleviated the
pain.
No anatomical defects or atrophy were noted in his right
radius, wrist or hand. He could touch the tip of his right
thumb to all of his fingers and could touch each finger to
the median transverse fold of his right palm. His grasping
strength was 4/5. No swelling, edema, hyperemia, redness,
instability or guarding was observed in either his hand or
wrist. Extension was to 55 degrees, with normal being 80;
extension was to 50 degrees with normal being 70. The
examiner found the range of motion to be functional and
referred to the flexion as a mild loss of motion. Mild, non-
disabling tenderness to palpation was noted on extension.
The diagnoses were residuals of a fracture of the distal
third of the right radius and mild post-traumatic distal
radius changes associated with mild degenerative joint
disease by X-rays.
A March 2000 rating decision increased the evaluation for the
veteran's residuals of a fracture of the distal third right
radius to the current 10 percent under Diagnostic Codes 5010-
5003.
Analysis
Service Connection
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
duty. 38 U.S.C.A. §§ 1110, (West 1991); 38 C.F.R. §§ 3.303,
3.304 (1999).
Regarding the service connection claim, the threshold
question that the Board must address is whether the appellant
has presented a well-grounded claim. A well-grounded claim
is one that is plausible. If he has not, the claim must fail
and there is no further duty to assist in the development of
the claim. 38 U.S.C.A. § 5107 (West 1991); Murphy v.
Derwinski, 1 Vet. App. 78 (1990). This requirement has been
reaffirmed by the United States Court of Appeals for the
Federal Circuit, in its decision in Epps v. Gober, 126 F.3d
1464 (Fed. Cir. 1997). That decision upheld the earlier
decision of the United States Court of Appeals for Veterans
Claims (known as the United States Court of Veterans Appeals
prior to March 1, 1999) (Court) which made clear that it
would be error for the Board to proceed to the merits of a
claim which is not well grounded. Epps v. Brown, 9 Vet. App.
341 (1996). The United States Supreme Court declined to
review that case. Epps v. West, 118 S. Ct. 2348 (1998).
The veteran has the burden of submitting evidence sufficient
to justify a belief by a fair and impartial individual that
his claim is well grounded. 38 U.S.C.A. § 5107(a) (West
1991). The Court, in Caluza v. Brown, 7 Vet. App. 498, 506
(1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996),
outlined a three-prong test which established whether a claim
is well grounded. The Court stated that in order for a claim
to be well-grounded, there must be competent evidence of a
current disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the in-service injury or
disease and the current disability (medical evidence). The
Court has also stated that a claim must be accompanied by
supporting evidence; an allegation is not enough. Tirpak v.
Derwinski, 2 Vet. App. 609 (1992). A claim is not well-
grounded where a claimant has not submitted any evidence of
symptomatology of a chronic disease within the presumptive
period, continuity of symptomatology after service, or other
evidence supporting direct service connection. Harvey v.
Principi, 3 Vet. App. 343 (1992).
Evidentiary assertions by the veteran must be accepted as
true for the purposes of determining whether a claim is well
grounded, except where the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet. App. 19, 21 (1993). The Board notes, however,
that inasmuch as the veteran is offering his own medical
opinion and diagnoses, the record does not indicate that he
has any professional medical expertise. See Bostain v. West,
11 Vet. App. 124, 127 (1998) ("lay testimony . . . is not
competent to establish, and therefore not probative of, a
medical nexus"); Routen v. Brown, 10 Vet. App. 183, 186
(1997) ("a layperson is generally not capable of opining on
matters requiring medical knowledge"), aff'd sub nom. Routen
v. West, 142 F.3d 1434 (1998). See also Espiritu v.
Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet.
App. 211 (1993); Grottveit v. Brown, 5 Vet. App. 91 (1993).
Further, although the veteran asserts that he injured his
back during a fall in service, this assertion does not make
the claim well grounded if there is no competent medical
evidence of record of a nexus between any disability in
service and his alleged current disability. See Savage v.
Gober, 10 Vet. App. 489 (1997); Heuer v. Brown, 7 Vet. App.
at 387 (1995) (lay evidence of continuity of symptomatology
does not satisfy the requirement of competent medical
evidence showing a nexus between the current condition and
service). As such, the Board will review the record to
assess whether all three of the criteria of Caluza are met
and the veteran's assertions are supported by the evidence of
record.
In the instant case there is no medical evidence of treatment
in service for a back disability, no showing that the veteran
currently has a back condition, and no medical opinion
relating any claimed back disability to service. Thus, the
criteria of Caluza have not been met. As such, the claim for
service connection for a back condition is not well grounded.
Since the veteran's claim is not well grounded, he cannot
invoke the VA's duty to assist in the development of the
claim under 38 U.S.C.A. § 5107(a) (West 1991). Grivois v.
Brown, 6 Vet. App. 136 (1994).
New and Material Evidence
Under pertinent law and regulations, as interpreted by the
Court, the Board may reopen and review a claim which has been
previously denied only if new and material evidence is
submitted by or on behalf of the appellant. 38 U.S.C.A. §
5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). The
credibility of the new evidence is presumed. Justus v.
Principi, 3 Vet.App. 510, 513 (1992).
The Court has held that the provisions of 38 U.S.C.A. § 5108
(West 1991) require a review of all evidence submitted by the
claimant since the last final denial of a claim in order to
determine whether a claim must be reopened and adjudicated on
the merits. Glynn v. Brown, 6 Vet. App. 523, 529 (1994); see
also Evans v. Brown, 9 Vet.App. 273, 285 (1996).
According to 38 C.F.R. § 3.156(a) (1999): "New and material
evidence" means evidence not previously submitted to agency
decision makers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative nor redundant and which, by itself or in
connection with the evidence previously assembled, is so
significant that it must be considered in order to fairly
decide the merits of the case.
The well groundedness requirement shall not apply with regard
to reopening disallowed claims and revising prior final
determinations. Jones v. Brown, 7 Vet. App. 134 (1994).
In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the United
States Court of Appeals for the Federal Circuit stated that
38 C.F.R. § 3.156(a) (1997) set the appropriate standard for
determining whether new and material evidence had been
submitted. Hodge provides for a reopening standard which
calls for judgments as to whether new evidence (1) bears
directly or substantially on the specific matter, and (2) is
so significant that it must be considered to fairly decide
the merits of the claim.
In Elkins v. West, 12 Vet. App. 209 (1999) the Court held
that, in making a determination as to whether new and
material evidence has been submitted to reopened a previously
denied final decision, a three step process is required. It
must first be determined whether new and material evidence
has been submitted. If new and material evidence has been
submitted, it must be determined whether the claim is well
grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). If
the claim is not well grounded, the "adjudication process
must come to a screeching halt despite reopening because a
claim that is not well grounded cannot be allowed." See
Winters, 12 Vet. App. at 206. If the claim is well grounded,
then the VA must ensure that the duty to assist has been
fulfilled before proceeding to the third step of a merits
adjudication. See Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998).
The only medical evidence regarding hearing loss or ear
problems presented since the March 1972 rating decision is
the January 1994 private audiological examination report,
which notes that the veteran has bilateral hearing loss. As
noted, the claim was previously denied since there was no
showing of any ear disability. Therefore, the additional
evidence, is new and material. When viewed in the context of
all the evidence, it is so significant that it must be
considered in order to fairly decide the merits of the claim.
The claim is therefore reopened. His appeal is granted to
this extent only. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156;
Hodge, 155 F.3d at 1359, 1363.
Having reopened the claim, the Board must next determine
whether it is well grounded. See Robinette v. Brown, 8 Vet.
App. 69, 75-6 (1995); Winters, 12 Vet. App. at 206. Although
the veteran asserts that his ear condition was caused by
active service, and it has been determined that he currently
has a hearing loss, other than his own contentions, he has
submitted no medical evidence to show a medical link to his
military service. Although the veteran is competent to
provide an account of his symptoms, "the capability of a
witness to offer such evidence is different from the
capability of a witness to offer evidence that requires
medical knowledge". See Espiritu v. Derwinski, 2 Vet.App.
492, 494 (1992). Therefore, after a careful and thorough
review of the record, it is concluded that the newly opened
claim is not well grounded, and the claim is denied.
Increased Rating
The Board notes that where entitlement to compensation has
already been established and increase in disability rating is
at issue, the present level of disability is of primary
concern. Further, although a review of the recorded history
of a disability should be conducted in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the
Board has thoroughly reviewed all medical evidence of record,
the Board will focus primarily on the most recent medical
findings regarding the current level of the veteran's
service-connected residuals of a fracture of the distal third
right radius.
Degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved (DC 5200 etc.). When however, the limitation of
motion of the specific joint or joints involved is
noncompensable under the appropriate diagnostic codes, a
rating of 10 percent is for application for each such major
joint or group of minor joints affected by limitation of
motion, to be combined, not added under diagnostic code 5003.
Limitation of motion must be objectively confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. In the absence of limitation of
motion, rate as: With X-ray evidence of involvement of 2 or
more major joints or 2 or more minor joint groups, with
occasional incapacitating exacerbations, 20 percent. With X-
ray evidence of involvement of 2 or more major joints or 2 or
more minor joint groups, 10 percent. The 20 percent and 10
percent ratings based on X-ray findings, will not be combined
with ratings based on limitation of motion. 38 C.F.R.
§ 4.71a, diagnostic code 5003 (1999).
Nonunion of the radius and ulna, with flail false joint
warrants a 50 percent evaluation for the major hand.
Diagnostic Code 5210.
The veteran's service-connected fracture residuals were
originally rated under Diagnostic Code 5212. Diagnostic Code
5212 provides that for impairment of the radius of the major
hand: nonunion in lower half, with false movement: with loss
of bone substance (1 inch (2.5 cms.) or more) and marked
deformity warrants a 40 percent evaluation. Without loss of
bone substance or deformity warrants 30 percent. Nonunion in
upper half warrants 20 percent. Malunion, with bad alignment
warrants 10 percent.
Regarding impairment of supination and pronation, Diagnostic
Code 5213 provides that: loss of supination and pronation
(bone fusion): the hand fixed in supination or hyper
pronation warrants a 40 percent evaluation. The hand fixed
in full pronation warrants 30 percent. The hand fixed near
the middle of the arc or moderate pronation warrants 20
percent. Limitation of pronation: motion lost beyond middle
of arc 30 warrants percent. Motion lost beyond last quarter
of arc, the hand does not approach full pronation warrants 20
percent. Limitation of supination to 30 degrees or less
warrants a 10 percent evaluation.
In the instant case the veteran had only mild limitation of
motion and had a functional wrist with regard to fatigue.
The record is negative for medical evidence of nonunion in
the upper half, fixation near the middle of the arc or loss
of motion beyond the last quarter of arc or X-ray evidence of
involvement of 2 or more major joints or 2 or more minor
joint groups, with occasional incapacitating exacerbations
sufficient to warrant a rating in excess of 10 percent.
While the veteran complained of pain associated with the
disability at issue, "a finding of functional loss due to
pain must be 'supported by adequate pathology and evidenced
by the visible behavior of the claimant. 38 C.F.R. § 4.40."
Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The only pain
elicited during the examination was a slight tenderness to
palpation rather than a functional loss due to pain. Thus,
the Board finds that 38 C.F.R. §§ 4.40, 4.45, and 4.59 do not
provide a basis for a higher rating. DeLuca v. Brown, 8 Vet.
App. 202 (1995).
Additionally, the Board notes that there is no indication
that the schedular criteria are inadequate to evaluate the
veteran's disability since there has been no showing that it
has caused marked interference with employment (i.e., beyond
that contemplated in the assigned evaluation), or
necessitated frequent periods of hospitalization, or that the
disability otherwise renders impracticable the application of
the regular schedular standards. In the absence of evidence
of such factors, the Board is not required to remand this
case to the RO for the procedural actions outlined in 38
C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337,
338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
For the above reasons the claim for an increased rating for
residuals of a fracture of the distal third right radius is
denied. Regarding this issue the Board has carefully
reviewed the entire record; however, the Board does not find
the evidence to be so evenly balanced that there is any doubt
as to any material issue. 38 U.S.C.A. § 5107.
ORDER
Entitlement to service connection for a back condition is
denied.
New and material evidence has been submitted to reopen a
claim for service-connection for an ear condition, and to
that extent only, the appeal is granted.
Entitlement to service connection for an ear condition is
denied.
Entitlement to an increased evaluation for residuals of a
fracture of the distal third right radius is denied.
NADINE W. BENJAMIN
Acting Member, Board of Veterans' Appeals